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Putnam Election Commission Case Could Affect DeKalb County

April 25, 2011

by:

Dwayne Page

A Chancery Court ruling in Putnam County over whether the state or county should bear the costs of attorney's fees in a federal lawsuit against the Republican majority of the election commission is expected to affect DeKalb County as well.

The Tennessee Supreme Court's specially appointed Chancellor in the case, Judge Donald Harris, has found that the county, not the state, is responsible for the Putnam County election commission's legal expense in defending the lawsuit filed against it by the former administrator of elections. The Chancellor also ruled that Putnam County must pay the election commission's legal fees for action taken against the county due to non-payment of attorneys fees.

Judge Harris recently held a hearing on the matter in Putnam County Chancery Court.

In the ruling, Judge Harris wrote that "the entity responsible for providing legal representation to the Putnam County Election Commission would likewise be responsible for providing legal representation for any member of the election commission sued in their official capacity," wrote Harris.

According to the Herald-Citizen, the chancery court case stems from a federal lawsuit filed in 2009 by former Putnam election administrator Nancy Boman, who claims she was removed from her post because of her perceived political affiliation and that three new Republican commissioners at the time -- Terry Herrin, Jean Cody and Joan Ross -- violated her First and Fourteenth Amendment rights. The election commission hired its own attorney and filed its own suit weeks after Boman's was filed, when Putnam County attorney Jeff Jones said the county was not responsible for paying its legal fees.

Jones argued that the Tennessee attorney general is responsible for providing for the commission's defense in federal court because county election commissioners are state actors. That was the opinion, in fact, of Senior U.S. District Judge Thomas A. Wiseman Jr. in a December order filed in that federal lawsuit, he said.

"The court agrees with the characterization that both the members of the Putnam County Election Commission and the Putnam County Administrator of Elections as being state employees. However that status does not result in the State Attorney General having the duty to represent the members of the county election commission when they are sued in their official capacity or in the State of Tennessee having the responsibility to fund the expense of their legal representation. Tennessee Code Annotated 2-12-109(a) provides: Except as otherwise provided by law, it is the responsibility of the county to fund the operations of its election commission. This language makes the expenses incurred by the election commission in the conduct of its operations the responsibility of Putnam County unless there is a specific provision elsewhere in Code that makes them the responsibility of another entity," wrote Harris.

"It is the opinion of the court that Putnam County, as a matter of law, is responsible for the reasonable cost of that representation and for any liability imposed as a result of the pending federal action. It has refused to assume that responsibility. Tennessee Code Annotated section 2-12-101 (c) (4) provides that "if, in order to properly discharge its duties, the county election commission has to bring legal action against a county or municipality, the compensation for the commission's legal representation shall be borne by the county or municipality as the case may be." Thus, Putnam County is also responsible for the legal expenses of the Putnam County Election Commission in bringing the action," wrote Harris.

Deputy Janet Kleinfelter with the Tennessee attorney general's office had asked during the hearing that the action against Tennessee Attorney General Robert E. Cooper Jr. -- who, along with Putnam County Executive Kim Blaylock, was named as a defendant in the chancery case -- be dismissed. She said the county was the party responsible for legal defense based on a series of Tennessee statutes.

Attorney John Harris, III of Nashville, representing the Putnam County Election Commission and the three individual commissioners named in the federal lawsuit, told the judge that he also believed the cost of the federal case -- as well as the chancery court action -- should be borne by the county.

Based upon the Chancellor's ruling, it appears that DeKalb County would also be required for payment of the legal expense of the local election commission.

In March, the DeKalb County Election Commission voted 3-2 to hire the same attorney Putnam County has employed, John Harris, III to represent them in a federal lawsuit brought in 2009 by the former administrator of elections, Lisa Peterson.

That decision came after the county's insurance carrier recently withdrew its legal representation based on the December federal court ruling that the local election commissioners were "state actors" and after the state attorney general, Robert E. Cooper, Jr., in a letter to Election Commission Chairman Walteen Parker, wrote that the commission could not rely on the state to provide a defense and would have to hire its own legal counsel in the case.

Since the court has ruled that the election commissioners cannot be held liable for monetary damages, John Harris said the only significant remaining issue to be decided is the "injunctive relief" claim in the lawsuit.

DeKalb is among about a dozen counties in Tennessee where lawsuits have been filed by former administrators of elections asserting that they were not re-appointed to those positions because of their political party affiliation.